Petitioner
Sheena Mortimer, by counsel William C. Gallagher, appeals the
May 20, 2016, order of the Circuit Court of Ohio County order
affirming the report and recommendation of an administrative
law judge for the West Virginia Department of Health and
Human Resources ("DHHR") Board of Review that
placed petitioner's name on the Nurse Aide Abuse and
Neglect Registry[1] ("Registry") upon a finding of
abuse and neglect. The DHHR, by counsel James
"Jake" Wegman, filed a response in support of the
circuit court's order. Petitioner submitted a reply.

This
Court has considered the parties' briefs and the record
on appeal. The facts and legal arguments are adequately
presented, and the decisional process would not be
significantly aided by oral argument. Upon consideration of
the standard of review, the briefs, and the record presented,
the Court finds no substantial question of law and no
prejudicial error. For these reasons, a memorandum decision
affirming the circuit court's order is appropriate under
Rule 21 of the Rules of Appellate Procedure.

Petitioner
was a registered long-term care nurse aide ("CNA")
employed by Guardian Elder Care (also referred to as Peterson
Rehabilitation Hospital), a certified long-term care facility
located in Wheeling, West Virginia. On March 19, 2015, the
Office of Health Facility Licensure and Certification
("OHFLAC"), the state agency charged with
investigating allegations of abuse and neglect by nurse aides
in such facilities operating in West Virginia, see
69 C.S.R. § 6-2.8 (2010), received an "Immediate
Fax Reporting of Allegations" form from petitioner's
employer. It alleged that, on March 10, 2015, petitioner
refused to provide care to Resident D.H. as she lay in bed in
her room wearing a soiled adult brief with her call light out
of reach. D.H. was a 79 year-old female with diagnoses
including cognitive deficits due to cerebrovascular disease,
chronic airway obstruction, pulmonary heart disease,
depression, hypertension, dementia, psychosis, anxiety,
opioid dependence, atrial fibrillation and aphasia.
D.H.'s care plan required that she have assistance with
activities for daily living, including being toileted every
two hours. She used pads and briefs for incontinence.

On
March 25, 2015, OHFLAC received a "Five Day Follow-Up
Report" form from petitioner's employer concerning
the initial allegations. The report indicated that a
statement was obtained and "verified [petitioner] was
suspended on March 17, 2015. During counseling and suspension
process in the HR office[, ] [petitioner] stated 'I
don't want to work here anymore.' She got out of
[the] chair and left the office and [did] not listen to [the]
HR Director and ADON [Assistant Director of Nursing Judy
Nesbitt] regarding the pending investigation." OHFLAC,
by Debra Cumpston, a registered nurse and OHFLAC's Health
Facility Nurse Surveyor, then investigated the incident and
prepared a report. The allegations of abuse and neglect were
substantiated by OHFLAC's Long-Term Care Nurse Aide Abuse
and Neglect Registry Committee. By letter dated August 20,
2015, OHFLAC notified petitioner of the committee's
findings and its intent to place her name on the Registry.

At
petitioner's request, a hearing was conducted before an
administrative law judge ("ALJ") on November 18,
2015.[2] Based upon the evidence presented, the ALJ
found that, on March 10, 2015, petitioner was assigned to
seven rooms in Wing 6 of the facility, including D.H.'s
room. At approximately 7:00 pm, Licensed Practical Nurse
("LPN") Sandy Griffith encountered petitioner, who
stated, in reference to D.H., "I'm not going into
the f*****g room by myself because she has a problem with
me." Petitioner's remarks were made approximately
two doors away from D.H.'s room. LPN Veronica Blythe was
also working that evening as a nurse aide on D.H.'s
floor. Blythe testified that she spoke to petitioner at a
location that was "fairly close" to D.H.'s
room. Petitioner loudly stated, "I'm not f*****g
going in her room, she can f*****g rot in there for all I
care."

When
LPN Blythe went into D.H.'s room, D.H. was asking for
help. Blythe observed D.H. laying uncovered and "spread
eagle" with her adult brief undone and fecal matter all
over her and the bed. The privacy curtain in the room was
open. As LPN Blythe began to clean D.H., D.H. stated,
"Thank god you're here. I don't know why they
hate me so much. I don't know why Sheena [i.e.,
petitioner] is so mean to me." Blythe observed that
D.H.'s call light was wrapped around a chair and out of
her reach. D.H. told LPN Blythe that it was petitioner who
had moved her call light there. D.H. later testified at the
hearing that petitioner intentionally moved the call light
out of her reach and did not provide incontinent care.
According to LPN Blythe, D.H.'s roommate, Resident M.B.,
said that petitioner told her not to ring the call light for
D.H.

According
to Surveyor Cumpston, facility staff needs to check
incontinent residents at least every two hours. Cumpston and
ADON Nesbitt both testified that leaving a resident in feces
or urine is a health risk that can lead to skin breakdown,
other health problems, and violations of the resident's
dignity.

The ALJ
found that, under the Nurse Aide Abuse Registry Rules
("Registry Rules"), "a finding of neglect
requires a failure to provide services necessary to avoid
physical harm or mental anguish unless such actions are
beyond the nurse aide's control." See 69
C.S.R. § 6-2.4 (2010). The ALJ found that the finding of
neglect by the DHHR was supported by the evidence, including
petitioner's failure to enter D.H.'s room, which
resulted in LPN Blythe finding D.H. laying "spread
eagle" in her bed and covered in feces, with her room
door and privacy curtain open. Petitioner had also placed the
call light out of D.H.'s reach. Similarly, the ALJ found
that, under the Registry Rules, "a finding of
psychological and emotional abuse requires humiliating and
harassing a resident." See 69 C.S.R. §
6-2.10 (2010). In this case, petitioner prevented D.H. from
asking for assistance when she was in need, as described
above, and, knowing that she needed assistance, stated that
D.H. could "rot in there for all I care." This
conduct, the ALJ found, supported the DHHR's finding of
abuse.

Based
upon the foregoing, the ALJ concluded that "[t]he
decision of the Nurse Aide Abuse Registry Committee to
substantiate neglect and abuse should be upheld[, ]" and
that petitioner's name shall be placed on the Registry
and remain there "until a court of law reverses the
decision or [petitioner] petitions for removal of her name at
the expiration of the placement period."

Petitioner
appealed the ALJ's decision to the Circuit Court of Ohio
County, which denied the appeal and affirmed the placement of
petitioner's name upon the Registry. This appeal
followed.

We consider petitioner's appeal under the following
standard:

"On appeal of an administrative order from a circuit
court, this Court is bound by the statutory standards
contained in W.Va.Code &sect; 29A-5-4(a) and reviews
questions of law presented de novo; findings of fact
by the administrative officer are accorded deference unless
the reviewing court believes the findings to be clearly
wrong." ...

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